The Court Procedures: The Evidentiary Phase
An early modern GA case that came before the
Consoli rested on two principal documentary pillars. The first were the accident reports, known in English as ‘sea protests’. A sea protest was a master’s account of the voyage with a focus on the vicissitudes that had led him to a request for GA. In Tuscany, most cases actually contain two versions of this report, which were not always identical. The first is generally called a
consolato. This had to be made by the master as soon as possible on arrival in the closest available port after the accident, a thing that all the narrative documents are at pains to emphasise.
1 See for example ASP, CM, AC, 25-8 (30 May 1600), Testimoniale; ASP, CM, AC, 197-29 (26 April 1640), Consolato; ASP, CM, AC, 320-7 (28 May 1670), Testimoniale. This requirement is discussed in Guido Rossi, ‘The liability of the shipmaster in early modern law: comparative (and practice-orientated) remarks’, Historia et Ius 12 (2017), 1–47, at p. 33. This fact usually meant that the court or official drawing up the
consolato had no jurisdiction with regard to any litigation arising from the mishap. The name
consolato derives from the custom of producing the document in the chancellery of a national consul or other local official in a port: if made in Livorno they were made before the Governor of the city and his auditor. When a ship found itself making land far away from a port with the facility to create
consolati, masters sometimes provided an affidavit signed by a local castellan, before making the
consolato at a later point.
2 E.g. ASP, CM, AC, 25-3 (28 June 1600). The
consolati are almost all supported by the testimony of witnesses, usually three in number, almost always members of the crew.
3 There appears to be no discernible pattern regarding the selection of witnesses. Sometimes a mixture of crew and officers are selected, sometimes all officers, sometimes all crew. Most of these
consolati would be made as a precautionary measure and would not result in any further action. If a master even suspected damage, water damage from a storm for example, it was prudent to make a declaration so that he would have the means to indemnify himself if damage was discovered later.
4 See the many consolati which have remained in Livorno, preserved in ASL, Governatore e Auditore, Atti Civili; Rossi, ‘The liability of the shipmaster’, p. 33.The second version of the report which we find in the archival cases is usually referred to as the
testimoniale e domanda. This also purported to be the verbatim testimony of the master, who had come personally before the Pisan court to explain what had happened in the voyage (the
testimoniale part), and to make a formal request for absolution and for GA (the
domanda part).
5 This nomenclature is not rigidly observed by the sources. The consolato is sometimes referred to as a testimoniale and vice versa. Sometimes the consolato is also referred to as a relazione or dichiarazione. They are, however, the most common labels applied to these documents, and they are used here for the sake of clarity. As we will see, however, the master’s presence was not actually guaranteed at this stage.
While the court procedure was initiated with the presentation of the
testimoniale e domanda along with the original
consolato, a number of other documents might then be produced and make their way into the file deposited in the archive. These include summons (
citazioni), notifying interested parties of the case and of the submission of new documentation; exceptions (
eccezioni) and interrogatories (
interrogazioni), which were used as part of the judicial investigation to test the veracity of the master’s account; and the final judgement (
sentenza) of the
Consoli declaring the GA. As the judgements do not state the underlying reasons for a particular outcome, however, they are of limited value in understanding how GA cases worked. Only one thing from the judgements needs to be borne in mind here: that the judgement of the
Consoli in cases of GA was in fact two-fold. Firstly, they declared that the master was not liable for the damages and expenses incurred (
assolviamo detto capitano, sua nave, e gente di essa), and only then did they declare that it was a case of GA (
condennando … à dover concorrere in avaria).
6 ASP, CM, AC, 321-30 (30 August 1670), Judgement. The interest of the master in the case was not only that GA be declared, but that he and his crew be absolved of any potential personal liability for what had gone wrong.